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15 July 2013

Arguments on Porn, Rape and Free Speech

A. Existing Law:
It is easy to get the impression that there is a dearth of law in India to address pornography and its proliferation. However, there are a number of laws in India applying to various media which address pornography; they include:

(Of the first four items in this list, whilst only the Information Technology Act is a statute dedicated to the ‘cybersphere’, there is no indication in the other named statutes that they would not also apply online.) Given that there are a large number of laws dealing with the subject of pornography, it is unclear what purpose would be served by further amendments to the law, unless such amendments were specifically designed to criminalise the viewing or possession of adult pornography for personal use. Whether such criminalisation would serve any purpose other than to make of the vulnerable to the workings of criminal law a large number of persons is unclear. It is also unclear what the ‘collateral damage’ likely to be effected by such criminalisation would be, whether the banning of pornography would in fact counter any of the suspected ill-effects of pornography, and whether the (attempted) implementation of a ban would be the best use of limited resources. (This Post makes no attempt to answer these questions; they require a far more in depth study than is within the scope of the Post to address.)

On porn causing rape: I don't know what the effect of porn on crime rates is, and make no claim that porn causes rape although it may be a factor in the equation. That said, I believe that it's legitimate to suspect that porn objectifies women (in particular), and that the objectification of women in porn (and, for that matter, beyond it) does nothing to further the cause of women's rights in general.

On porn being rape: I do not believe that all porn is rape nor do I make that argument. When it comes to consensual sex though, I believe that there exists both wanted and unwanted consensual sex. I also believe that women's decisions to consent to act in porn may be informed by poverty and the lack of viable alternatives (amongst other factors), and that discussions on porn are incomplete without taking into account economics and societal power structures.

On porn being obscene: That porn in itself is obscene and should therefore be banned is not an argument I have any sympathy for.

On watching porn and criminal liability: I make no argument that the unintentional consumption of non-consensual porn should be a crime; with respect to access, I only argue that the consumption of non-consensual porn is not a free speech right.

(2) The arguments I did make:

Some porn is rape: Filmed real-rape is likely to be indistinguishable from simulated-rape porn to third parties who do not know the persons featuring in the filmed real-rape. As such, filmed real-rape may masquerade as porn, and would be porn (albeit 'rape porn') for all intents and purposes to such third parties.

Some porn may not be rape but is non-consensual: Apart from filmed real-rape which is clearly non-consensual, sexual activity may be filmed without consent or, even if it is filmed with consent, it may later be disseminated without consent (such as in the case of revengeporn, also referred to later). There may also be cases where a person is not legally capable of giving consent to the filming of sexual activity or its subsequent dissemination (such as in the case of child porn which involves statutory rape where the 'consent' of a minor has been obtained). Except in cases where persons clearly incapable of consenting to feature in filmed sexual activity appear, there is often no way third parties can easily identify non-consensual porn.

A lack of access to remedies: Only the privileged are likely to be able to challenge the dissemination of filmed real-rape masquerading as pornography as well as other forms of non-consensual pornography.

No existence of a free speech right: When it comes to non-consensual pornography, there is no free-speech right for a rapist or anyone else (possibly other than the person raped) to either disseminate such content or to access it. Any discussion on porn and free speech should take into account how the porn was created; some of what is considered porn is in fact of non-consensual nature, and a generalization to the effect that 'unimpeded dissemination of / access to porn (without qualification) is a free-speech issue' is indefensible. The dissemination of and access to porn can potentially be a free speech right only where the porn in question is consensual in nature; all porn is not a free speech issue, and only a qualified free speech right can exist in relation to porn.

C. Lacunae in Existing Law:

(1) Revenge Pornography

A phenomenon which has emerged in recent times is that of ‘revenge porn’ which generally involves the former partner of a woman supposedly taking revenge on her for some reason or other by uploading online intimate/explicit videos featuring her. These videos may have been taken with her consent during her relationship with the uploader, but their dissemination online is invariably without her consent.

Although the standard laws applicable to pornography would also apply to ‘revenge porn’ by virtue of its explicit nature, it would appear that there is no dedicated provision in the Indian Penal Code (the ‘IPC’) to address ‘revenge porn’. Arguably, Section 354C of the IPC which deals with Voyeurism could be interpreted to apply to ‘revenge porn’. However, a possibly critical flaw in the applicability of Section 354C of the IPC to ‘revenge porn’ is that the Section is intended to apply where the woman ‘would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator’ — in the case of ‘revenge porn’, considering that the perpetrator is typically a former partner, it is likely that it would be difficult to argue that an expectation of privacy existed, and as such, it is possible that the Section could conceivably be inapplicable at the threshold itself.

In its entirety, the Section reads as follows:

Voyeurism | 354C. Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.Explanation I.-For the purpose of this section, "private act" includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.Explanation 2.-Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.

Should Section 354C of the IPC be inapplicable to ‘revenge porn’, (and basic statutory interpretation gives one reason to suspect that it may be inapplicable despite Explanation 2), it would appear that there is no provision in criminal law which is dedicated to addressing the issues raised by revenge pornography.

(2) Trophy Pornography:

Another phenomenon falling under the broad head of ‘pornography’ which appears to be becoming increasingly common is that of ‘trophy porn’ — the practice of rapists and other abusers filming the rape of their victims and then uploading the recordings online as trophies or threatening to use the recordings against the victims.

Some cases which have been reported in the media in recent months:

Rajasthan: A man allegedly raped a girl (15) and uploaded a clip on to Facebook (Times of India | Jun 19, 2013);

As with the case of ‘revenge porn’, there appear to be no criminal provisions dedicated to addressing the clear damage done to victims of ‘trophy porn’ although, of course, the standard laws relating to pornography apply to both revenge and trophy pornography (including Section 509 of the IPC which deals with outraging the modesty of a woman).

The issue is not one which is restricted to India. It has been reported that 'in the UK, up to 100 cases of rapists are posting sickening trophy videos of attacks online reported in the last 12 months; a victims' charity urged David Cameron to change law loophole that permits porn 'depicting rape'.' (Daily Mail)

If there is a clear case to be made for the need of legal amendments in relation to pornography, it is in relation to revenge pornography and trophy pornography both of which are created and/or disseminated without the consent of those appearing in it, in unquestionable violation of their legal rights including the right to privacy.

Unfortunately, despite having clear victims, neither revenge pornography nor trophy pornography have dedicated legal mechanisms which may be invoked to address them (although standard laws dealing with pornography and outraging the modesty of women would apply). It may therefore be worth considering the introduction of provisions into the law to deal with these two forms of sexual violence, penalising those who produce such non-consensual pornography and disseminate it perhaps to a greater degree than those who produce and disseminate consensual pornography (i.e. pornography which is filmed and disseminated with the consent of those who feature in it).

D. Impact on a ban on cyber pornography on participants
It is worth noting that at the time of drafting this Post, the UK is considering a proposal to ban so-called ‘rape porn’ which, inter alia, depicts simulated rape. An argument has been made against the banning of rape pornography by Zoe Stavri to the effect that ‘banning rape porn will not make it go away, but send it underground where we are less able to observe the safety of performers’. Instead of banning such pornography, she therefore argues for the introduction of more pornography with clear negotiation and boundary-setting.

Given that an all out ban of pornography is likely to be technologically unfeasible, it is worth, in addition to considering the effects of pornography, also considering what the effects of a ban — particularly an unworkable ban — would be on those who feature in pornography. As a general rule, it is not privileged persons who appear in pornography but persons from disadvantaged sections of society. It is not within the scope of this Post to determine what the effect of the ban on pornography would be on such persons although it is an issue which deserves consideration.

(This post is by Nandita Saikia and was first published at Indian Copyright. It uses the term 'revenge porn' simply because it's a term that's been widely used, and not because it's an accurate description of what so-called 'revenge porn' involves. It's also worth noting that the term 'revenge porn' is especially problematic since it seems to blame the victim by implying that she —and it is usually a woman— did something which calls for revenge.)[Update: This post has been significantly revised on July 28, 2013.]

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